Galasso v George - [2009] NSWLEC 1028

Land and Environment Court

of New South Wales

CITATION: Galasso v George [2009] NSWLEC 1028

PARTIES:
APPLICANT
Ermino and Alina Galasso
RESPONDENT
Anthony and Rose George

FILE NUMBER(S): 20895 of 2008

CORAM: Taylor C - Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :- Root damage by tree, repair to boundary fence

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Osborne v Hook [2008] NSWLEC 1231

DATES OF HEARING: 27/01/2009

EX TEMPORE JUDGMENT DATE: 27 January 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr E. Galasso, litigant in person
RESPONDENT
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Taylor C, Thyer AC

27th January 2009

20895 of 2008 Galasso, Ermino and Alina v George, Anthony and Rose

JUDGMENT

1 Mr and Mrs Galasso, the owners of 72 Redmyre Road, Strathfield, have made an application under the Trees(Disputes Between Neighbours) Act 2006. They seek orders for removal of the tree(s) that exist at the south-western edge of their boundary fence on the property of Anthony and Rose George at 74 Redmyre Road. Mr Galasso claims the trees have caused cracking and displacement of the boundary fence that is located on his land.

2 The Tree Dispute Application form filed on 8 September 2008 sought compensation due to property damage and removal of the palm tree.

3 The claim for damage by the applicant for compensation was supported by a single estimate for repair works to the brick boundary fence to repair the horizontal cracking and lateral displacement of the wall. The quote for the works came to $8,114.

4 At the site inspection of the boundary on 27th January 2009 only Mr Galasso was present. However, we were able to arrange access to view the boundary fence on Mr George’s property through his son, who was present at 74 Redmyre Street.

5 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are:

6 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

7 In addition, in determining an application, the Court is required to consider the matters in s 12 of the Act.

The trees and the wall

8 Two palm trees that appear to be an Alexander and Cabbage tree palm are growing on the property of Mr and Mrs George. The trees appear to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Galasso v George

Details

AGLC: Galasso v George [2009] NSWLEC 1028
Case: [2009] NSWLEC 1028
Decision Date: 27 January 2009

CaseChat Overview and Summary

The Land and Environment Court of New South Wales presided over the case of Galasso v George, in which Ermino and Alina Galasso sought orders for the removal of trees on their neighbour Anthony and Rose George’s property. The Galassos alleged that the trees on the George’s property had caused damage to their boundary fence, which is situated on the Galasso’s land. They sought compensation for the damage and the removal of the trees.

The legal issues before the court were whether the trees on the George’s property had caused damage to the Galasso’s property and if so, whether the damage was sufficient to warrant the Court intervening. The court also needed to determine if the damage or risk was serious enough to warrant the Court intervening and if so, what should the Court order. The court had to consider these issues in light of the provisions of the Trees (Disputes Between Neighbours) Act 2006.

The court found that the trees on the George’s property had caused damage to the Galasso’s boundary fence, which met the first two tests under s 10(2) of the Act. However, the court found that the damage was not serious enough to warrant the Court intervening and ordering the removal of the trees. The court ordered the tree root mat to be cleared from the boundary wall fence and for the wall to be repaired so that the cracked and displaced bricks and the pier are rendered good. The court also ordered that the wall be repaired so that it acts as a suitable retaining wall, which along with the clearing of the root mat will reduce the likelihood of future damage. The court ordered that the cost of the works be shared between the parties, but that the financial burden to Mr and Mrs George should be capped at $2000 or, a quarter of the cheapest of 3 quotes, whichever is less.

Orders